Russ v Director of Public Prosecutions

[2016] QDC 263

.

[2016] QDC 263

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE DORNEY QC

No 3774 of 2016

NEVILLE JAMES RUSS  Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS                  Respondent

BRISBANE

10.14 AM, THURSDAY, 13 OCTOBER 2016

JUDGMENT

.

HIS HONOUR:   The originating application in this proceedings was filed on the 19^th of September 2016.  It seeks that an order made by this Court on 9 January 2014 disqualifying the applicant from holding or obtaining a motor vehicle licence for a period of three years be removed.

The provision in question is section 131(2) of the Transport Operations (Road UseManagement) Act 1995 abbreviated often to TORUM.  By the applicable provision:

A person who has been disqualified by an order, from holding or obtaining of Queensland driver licence for a period of more than two years, may, at any time after the expiration of two years from the start of the disqualification period, apply for the disqualification to be removed.

By subsection (2AA)(b), the application for disqualification to remove must be made, if the disqualification was ordered by a judge of this Court, to this Court (which has been done).

The next important provision is section 131(2C).  It states that:

Upon hearing any such application a judge of the … District Court … may, as is thought proper, having regard to the character of the person disqualified, the person’s conduct subsequent to the order, the nature of the offence, and any other circumstances… either by order remove the disqualification … or refuse the application.

There are consequential provisions then which are dealt with in subsections (2E) and (2F).  In this particular case counsel for the respondent has referred the Court to the purpose of the legislation.  That was highlighted by Judge Robin QC of this Court in Tabakovic v Commissioner of Police [2009] QDC 191 to the following intent:

…the section is there serving the useful purpose of providing an inducement to offenders to perform well, in which event there is a reasonable likelihood that they will be given the opportunity to become licensed to drive again - after suffering a sufficiently lengthy deprivation of the ability to drive to satisfy the community's demand for punishment.

I have also had reference to a recent decision of Judge Long SC of this Court in Braithwaite v Commissioner of Police [2016] QDC 247 where in paragraphs [3] and [4] he indicates that particularly with matters concerning the original offence: the Court must look at it in terms of the fact that it was imposed as being reflective of the purposes of punishment and making clear denunciation, as well as the necessary elements of deterrence and protection. He also makes reference to:

… the community interest in the safety of all road users and therefore, there is a need for satisfaction that the applicant is prepared to conduct himself –

or herself, as the case may be –

with due regard to such community expectations and also, that the purposes of punishment, denunciation and deterrence inherent, in the original sentence, are nevertheless met and not compromised by an acceptance of the application.

I turn then firstly to the actual sentencing remarks of his Honour Judge Martin SC of this Court.  The offence, of course, was one of dangerous operation of a vehicle causing grievous bodily harm while adversely affected by an intoxicating substance before leaving the scene.  The remarks made by his Honour indicate that he accepted, although in fact you left the scene and you went home, that it was clear that you understood the significance of what you’d done, and you had a belief that you would be going to jail which, of course, happened when the sentencing was implemented.  Nevertheless, he remarks that in taking into account your plea of guilty he accepted there was a deep and genuine remorse for the offending and referred to a psychologist’s report that you’d given up alcohol following the offending.

He referred to your “excellent” antecedents and the references there speaking well of you.  He also referred to you having maintained very good employment and you being married with one young son.

In the end he imposed the disqualification from holding or obtaining a driver licence for a period of three years.  Now, that is significant.  It is also, of course, significant that those three years will, in fact, expire in early January of next year.  So this application, while it can be bought after two years, is near the expiry of that particular term. 

In terms of your conduct subsequent to the order, Exhibit 1, which is your Queensland traffic record and Queensland criminal history, indicates that there is no untoward conduct at all subsequent to that particular time.  Although there is no direct evidence of you persisting in drinking to excess, you have asserted in your affidavit to the contrary and, given the circumstances of this case, I accept that to be true.

Your employment is referred to in a statement made by Mr Masci, the senior project manager for your employer, Pradella Constructions, which is dated 30 September of this year.  He refers to you as being a long term employee of that particular entity as site manager.  Obviously, it does not include the time you were incarcerated.  But he refers to your responsibilities as including coordinating a subcontractor workforce of over 230 men and involved in other management issues.  He refers to you having an outstanding work ethic and being a reliable and dependable worker.  He also refers to the fact of your display of deep remorse and shame and, in his belief, at least, that that reflects a maturity since your offending. 

Your affidavit also refers to the fact that you have learnt, since the incident, that holding a licence is a privilege and not a right, and that you have learnt that decisions impact not only upon you, but upon others, particularly your family who suffered as a result of the incarceration.  It’s been necessary, as the affidavit asserts, for you to actually move out from your home to a temporary residence because of a necessity to walk to work; and the fact that you have done that, consistently, since that time speaks well for this particular application. 

The only other circumstance of the case that I think is important is that fact that your wife is pregnant and likely to give birth to your child some time early next year.  It does appear from the letter, which is annexed to your second affidavit, that she is very concerned because of this pregnancy (with it being a multiple pregnancy and she having complications during the last pregnancy and she has been classified as high risk).  I think, therefore, that is also an important aspect in determining that it is appropriate, in this particular care, that you, in fact, have your driver licence back.

Accordingly, bearing in mind those aspects that I’m required to take into account under section 131(2C), I am sufficiently satisfied that is appropriate, in the circumstances, that I remove the disqualification imposed by this Court on 9 January 2014 and that that removal take place on and from today.  Is there anything further that needs to be done? 

MS BOILEAU:   No further orders, your Honour.

HIS HONOUR:   No.  There are the notifications that are required; and, I might just put on the record, that the particulars, as a result of this application, must be transmitted by the registrar of this Court to the Commissioner, and I just put that for the record.

MS BOILEAU:   Thank you, your Honour.

HIS HONOUR:   You are both excused.

MS BOILEAU:   Thank you, your Honour.

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